Gujarat High Court
Vejalben D/O Devrajbhai Verjaang ... vs Bhavik Amrutlal Shah on 8 December, 2022
Bench: N.V.Anjaria
C/FA/344/2022 ORDER DATED: 08/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 344 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 344 of 2022
==========================================================
VEJALBEN D/O DEVRAJBHAI VERJAANG GADHVI W/O BHAVIKKUMAR
AMRUTLAL SHAH
Versus
BHAVIK AMRUTLAL SHAH
==========================================================
Appearance:
MR MANISH J PATEL(2131) for the Appellant(s) No. 1
MR PREMAL R JOSHI(1327) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/12/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr. Manish J. Patel for
the appellant and learned advocate Mr. Premal Joshi
for the respondent.
2. The present First Appeal under section 96 of
the Code of Civil Procedure read with Section 19 of
the Family Courts Act, 1984 is directed against
judgment and decree dated 29.12.2021 passed by
learned Principal Judge, Family Court, Jamnagar in
Family Suit No. 58 of 2010.
2.1 The suit was in the nature of proceedings filed
by the petitioner husband under section 13(1)(i-a)
(i-b) of the Hindu Marriage Act, 1955, for obtaining
decree of divorce on the ground of cruelty and
desertion.
C/FA/344/2022 ORDER DATED: 08/12/2022
3. The marriage of the parties were solemnised on
20.01.2004. Out of the wedlock, a child named
Rishabh was born who is presently aged 10 years and
has been residing with the present appellant wife, as
stated. It was the case of the petitioner husband
that their matrimonial life did not run smooth. It
was alleged that it was on account of the behaviour
of the respondent wife and that her behaviour was
violent. It was alleged that she did not like to
perform the household work. It appears that
differences between spouses resulted into quarrels
and criminal case came to be filed by the wife. The
husband alleged that the respondent did not take care
of son Rishabh.
3.1 On the basis of the pleadings of the husband,
following issues came to be framed by the trial
court, (i) Whether the petitioner proves that the
respondent has subjected him/her physical/mental
cruelty (ii) Whether the petitioner proves that the
respondent has deserted him/her without any
reasonable cause or excuse for a continuous period of
more than two years immediately before presenting the
present petition (iii) Whether the petitioner is
entitled to get decree of divorce (iv) What order and
decree.
3.2 All the three issues were answered in
affirmative and final decree came to be passed. The
operative portion reads as under,
C/FA/344/2022 ORDER DATED: 08/12/2022
"(1) Present Suit moved by petitioner/husband
against respondent/wife u/s. 13(1)(i-a)(i-b) of
the Hindu Marriage Act, is hereby allowed.
(2) The petitioner's marriage solemnized with
the respondent on 20.01.2004 stands dissolved
with effect from the date of this order and
decree.
(3) Petitioner is directed to pay Rs.3 lac to
the respondent as permanent alimony amount for
future maintenance for the respondent.
(4) The petitioner-husband is hereby directed to
pay the entire amount of permanent alimony to
the respondent-wife within one month from the
date of pronouncement of this order.
(5) Parties to bear their own costs."
4. Learned advocate for the appellant submitted
that while the judgment and decree as above came to
be passed by the family court, the appellant wife had
no occasion to put forth her case or raise any
defence against the allegations made by the husband.
It was submitted that decree was passed on the basis
of ex parte version of the husband.
4.1 The aforesaid aspect could hardly be disputed
by the other side inasmuch as the trial court in the
impugned judgment recorded thus,
"After registration of the suit, summon was
issued to the defendant which was served upon
the respondent. But, defendant neither chose to
appear before this Court nor filed written
statement. Thereafter, defendant's right for
filing written statement was closed and it was
ordered to proceed the suit ex parte."
C/FA/344/2022 ORDER DATED: 08/12/2022
5. Therefore, it is an admitted position that while
the plaintiff lead evidence and it resulted into
judgment and decree of the trial court, the
respondent wife never had an opportunity to file her
written statement. She was deprived of raising
defence and never lead the evidence although it was
sought to be contended that the summons of the suit
was served on the wife still sh did not remain
present. However, the fact remains that the wife
could not defend the suit nor file written statement,
much less she could lead evidence.
5.1 It is true that in a suit, more particularly
when factual allegations are to be decided and
proved, leading of evidence is necessary. It is also
well settled that ex parte order or decree against a
party without availing such part the opportunity to
defend her case is to be avoided and in all
circumstances, the proceedings before the suit should
be tried on merits, after dealing with the version of
all the sides appearing before the Court.
5.2 In the facts and circumstances of the case, when
the respondent wife could not file written statement
nor could lead evidence and the decree in her absence
was passed, serious prejudice could be said to have
been occurred to her.
6. Resultantly, the proceedings of the family suit
deserves to be remanded to the Family Court concerned
for trial of the suit afresh.
C/FA/344/2022 ORDER DATED: 08/12/2022
6.1 In order that the family court is enabled to
consider the case afresh, the impugned judgement and
decree is set aside. The proceedings of Family Suit
No. 58 of 2020 shall be taken up by the Family Court
concerned again and the respondent-appellant wife
shall be allowed to file her written statement as
well as shall be permitted to lead the evidence. The
appellate court shall permit both the sides to lead
their respective evidence and pass a fresh judgment
and decree.
6.2 Such exercise shall be completed within a
period of six months from the date of receipt of this
order since the dispute is matrimonial.
6.3 It is clarified that this Court has not
expressed any opinion on merits of the case of the
either side. Setting aside of the decree and
remitting the proceedings back to the Family Court
are guided by the principles of natural justice based
on the aforesaid ground only.
7. This Appeal stands disposed of accordingly.
Civil Application would not survive in view of
the disposal of the main appeal itself.
(N.V.ANJARIA, J)
(SANDEEP N. BHATT,J)
BIJOY B. PILLAI
